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Wamego woman testifies in mother's memory on lawsuit caps

Carley says proposed increase in malpractice cap established more than 20 years ago insufficient

Cynthia Carley testifies Monday.

Wamego resident Cynthia Carley holds a picture of her mother, Barbara Jean Allen, after testifying in her memory Monday. Carley told legislators raising a cap on non-economic damages from $250,000 to $350,000 might still not be enough to convince attorneys to take her mother's complex case.

As Cynthia Carley showed legislators pictures Monday of bruises and wounds her elderly mother suffered while a patient at several medical facilities, she told them she was fulfilling a promise she made to her mother before she died at 78.

“One of her wishes was that I would speak up for the ones that can’t or won't and hold these facilities accountable for their actions and I would try and find an attorney that would take our case because there was negligence and abuse at each one of these facilities,” Carley said.

Carley, from Wamego, took her mother's case to the House Commerce, Labor and Economic Development Committee because she says the current cap on medical malpractice damages has made it impossible to find an attorney who will take the case and a proposal for a modest increase is insufficient.

Carley said 11 attorneys have turned her down, with two specifically saying they would take the complex case if there was a chance of a larger settlement.

“They said, Cindy if your mother’s case was in any of the four surrounding states, I would take your legitimate, not frivolous, lawsuit in an instant and we would directly go to trial,” Carley said.

Carley said she wouldn’t support any bill that sets the cap at less than $500,000. Mike O'Neal, president and CEO of the Kansas Chamber, urged the committee to stick with Senate Bill 311, which raises the cap on non-economic damages from $250,000 to $350,000.

“We do have sympathy with the lady and family who just spoke," O'Neal said. "My only comment is shame on the attorneys who take anywhere from 30 to 50 percent of the award.”

Non-economic damages are compensation for what is commonly called "pain and suffering" and don’t include things like lost wages or rehabilitation expenses associated with injuries.

Juries are not told of the cap and sometimes have voted to award far higher damages, that are then brought down to the cap level by judges. The cap hasn’t changed in more than two decades and has been the focus of recent legal challenges.

Raising the cap is seen as an attempt to help it keep passing legal muster, and SB 311 has already passed the Senate. Business and medical groups support the bill, which phases in the increase over eight years. Plaintiffs' attorneys and patient advocates protest that it won’t even cover the cost of inflation from when the cap was enacted in 1988.

There are also other provisions in the bill that have raised concerns, including one that would allow attorneys representing the businesses or medical professionals being sued to inform jurors about the finances or insurance coverage of the people suing them.

But Carley's testimony was based solely on the cap, which O'Neal called "an important piece of tort reform."

Jerry Slaughter, of the Kansas Medical Society, said the cap has prevented a "crisis" in health care costs in Kansas.

“There really can’t be any question the principal reason we have stability in the medical region, the billing area of it, is that the cap has turned the temperature down a little bit, if you will,” Slaughter said.

Tom Bell, of the Kansas Hospital Association, said the cap has helped recruit much-needed medical professionals to the state.

That was little comfort to Carley, who composed daily journal entries to document her mother's 111 days in five nursing facilities and hospitals leading up to her death.

She said she requested a review of medical mistakes she said she observed but members of a Kansas review board had conflicts of interest. Carley's complaints were instead investigated by a group called Cimro of Nebraska, which she said substantiated complaints against four of the five facilities.

She shared 24 incidents with legislators in her written testimony, including one facility that mixed up her records with another patient who had the same name but a different birth date and another at which her mother was left on a bedpan for an "undetermined length of time" until Carley found her with "her gown and bedding wet and fecal matter was all over her."

She said her mother, who was retired from the Department of Social and Rehabilitation Services, also developed MRSA, a penicillin-resistant bacterial infection common in long-term medical care facilities.

"She worked for 17 years helping children get out of abusive situations and then she was a victim of abuse and neglect herself," Carley said.